5.05. Ethical Restriction on Unauthorized Practice of Law [Rule 5.5]

Before breaking down Rule 5.5 and the definition (and exceptions) to the unauthorized practice of law under that rule, it is important to keep in mind how the nature of law practice has changed over time making the current rule necessary.  Historically, governing the unauthorized practice of law was fairly straight forward.  Lawyers practiced in a single jurisdiction, representing clients and appearing in courts in those jurisdictions.  When a lawyer crossed state lines and engaged in the practice of law without a license or court permission, that lawyer was engaged in the unauthorized practice of law. 

Today, with the increase in national and international businesses, not to mention the immediacy created by technological advancements, clients expect that trusted lawyers will be able to assist them with legal problems regardless where the problems arise.  This is a particular problem for transactional lawyers who may be negotiating deals in multiple states (with no license) and where there is no equivalent to pro hace vice admission to validate the practice.  In this environment, the traditional rules seem hopelessly outdated.  It is no longer true that the most important knowledge that a lawyer has is the law of a particular state.  Instead, lawyers are often hired for their knowledge or expertise in a particular area of law or type of transaction.  Because of these concerns, lawyers began to lobby for an amendment to the definition of the practice of law that recognized these cross-border realities.  This led to the adoption of Rule 5.5 which is styled “Unauthorized Practice of Law; Multijurisdictional Practice of Law.”  In this heading, “multijurisdictional practice” means legal work by a lawyer in a jurisdiction in which the lawyer is not admitted to practice law.  This is a tremendous shift from the traditional emphasis on state boundaries to a recognition that a lawyer can engage in the practice of law across state lines without a license and not be subject to discipline.  The current rule was adopted in 2013.